Kugan's case revisited as court allows AGC appeal over P Chandran

The Attorney-General's Chambers, representing the police, obtained leave from the Federal Court today to appeal the decision to award damages of RM357,500 to the family of P Chandran, who died while in police custody six years ago.

A three-member bench led by Chief Justice Md Raus Sharif allowed them permission to revisit the controversial apex court majority judgment in the A Kugan case last November, where the court ruled that the surviving family members are not entitled to receive exemplary damages as such damages can only be awarded to the living.

Chandran's family was awarded a total of RM357,500 in damages, comprising RM200,000 for exemplary damages, RM144,000 for loss of income, RM10,000 for loss of dependency and RM3,500 in special damages for funeral expenses.

The decision was made by the High Court in Kuala Lumpur and upheld by the Court of Appeal last May.

Leave was granted by the bench, despite lawyer M Visvanathan telling the court that Chandran's case is slightly different as the police and government are not appealing the whole decision that found the police liable for the death, but rather it is limited only to the amount of money to be received (quantum), as highlighted at the Court of Appeal.

Furthermore, Visvanathan said, senior federal counsel Alice Loke, in her written submission, had appeared as if she agreed with the minority judgment that exemplary damages should be awarded and that a nominal sum of RM30,000 was sufficient.

To this, Justice Raus (photo) said, “(If we decide, who knows) the quantum could be zero”.

This resulted in Visvanathan appearing stunned by the response from the CJ.

But Justice Raus further said, "Who knows, maybe we are with you and the minority judgment."

Loke, on the issue of agreeing to RM30,000 as exemplary damages, denied that this was so.

Only one question of law

She said that the AG's Chambers was only posing one question, namely whether Section 8(2) of the Civil Law Act 1956 entitled the family to receive exemplary damages.

Justice Raus then allowed leave on the single question but ordered both parties to rephrase the question.

Besides Justice Raus, the other judges were Justice Zainun Ali and Justice Azahar Mohamed.

Justice Zainun was the judge who wrote the dissenting judgment in the Kugan case, which is heralded by many as the correct position where exemplary damages for death in custody cases should be awarded to the family.

Visvanathan, when met outside court, was visibly upset but agreed that with leave granted, it provided an opportunity to revisit Kugan's case with another Federal Court bench.

Chandran, who was 47 then, died from hypertensive heart disease as a result of the police not giving or allowing the use of medicine related to his condition.

On Jan 9, last year, High Court judge S Nantha Balan found the police and government had acted in negligence by not sending Chandran to the hospital and breached their duty to take care of the lorry driver.

"In my view, if the police and the officers on patrol duty and those monitoring the CCTV at IPD Dang Wangi had done their job, they would have observed that there was something not right with the deceased, especially on the early morning of Sept 10, 2012.

"They should have taken steps to intervene and send the deceased to the hospital, but it appears that everyone who had a duty to look after the detainees, as per the Lock-Up Rules 1953, had abdicated their responsibilities and washed their hands off the matter," Justice Nantha Balan had ruled.- Mkini